Dignity Denied
LGBT Immigrants in U.S. Immigration Detention
By Sharita Gruberg
November 2013
W W W.AMERICANPROGRESS.ORG
Dignity Denied
LGBT Immigrants in U.S. Immigration Detention
By Sharita Gruberg
November 2013
Contents
1Introduction
3 Abuse in immigration detention
5 CAP FOIA request reveals dangerous conditions for LGBT immigrants in detention
5 Sexual assault
6 Solitary confinement
7 Inadequate medical care
8 ICE’s attempts to address the needs of LGBT detainees
8 2011 Performance-Based National Detention Standards and ICE detention reform
initiative
9 ICE sexual abuse and assault prevention and intervention directive
10 Santa Ana City Jail protective-custody unit
10 ICE directive on solitary confinement
12 Impact of increased enforcement in pending legislation on
LGBT immigrants
12 Senate Border Security, Economic Opportunity, and Immigration Modernization
Act of 2013, or S. 744
13 House Border Security, Economic Opportunity, and Immigration Modernization Act,
or H.R. 15
14 SAFE Act, or H.R. 2278
16 Recommendations
19 Conclusion
20 Author bio and Acknowledgements
22 Endnotes
Introduction
As Congress debates immigration reform, a common refrain from congressional
Republicans is the call for increased border security and increased resources for
enforcement of immigration laws. While it is in the interest of national sovereignty
and security to track those who come into and leave the United States, we cannot permit enforcement of immigration laws to trample immigrants’ basic human
rights. We must ensure that immigration enforcement is conducted in a humane
manner that respects human dignity. Unfortunately, the current immigration
enforcement system falls short of this goal, particularly in regard to the treatment
of lesbian, gay, bisexual, and transgender, or LGBT, immigrants.
While the Department of Homeland Security, or DHS, does not keep data on
the sexual orientation or gender identity of people in its custody, reports of
treatment of LGBT detainees obtained through Freedom of Information Act, or
FOIA, requests and through complaints filed by immigrant rights groups reveal
that much like in the general prison population—where LGBT inmates are 15
times more likely to be sexually assaulted than the general population2—LGBT
immigrants in immigration detention facilities face an increased risk of abuse in
detention. The U.N. Special Rapporteur on torture and other cruel, inhuman or
Americans for Immigrant Justice provided a graphic example of how
LGBT immigrants are mistreated. Advocates from this organization
described incidents of transgender immigrants who were detained
at the Krome Service Processing Center in Miami, Florida, and kept in
administrative segregation—more commonly known as solitary confinement—for periods of up to six months at a time. The purported
rationale for placing LGBT immigrants in solitary confinement is to
protect them from the general detainee population. LGBT immigrants
in immigration detention facilities are at increased risk of verbal
abuse, sexual assault, and physical assault. In the case of Krome,
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female transgender detainees are housed with the male population.
Rather than providing a safe environment for immigrants who are
particularly vulnerable to abuse—such as transgender people—
Krome opts to place LGBT immigrants in administrative segregation.
In addition to being held in isolation for 23 hours per day, LGBT
immigrants in solitary confinement at Krome are further mistreated:
They are released into a caged section within the facility’s outdoor
recreational area for one hour per day, frequently at the same time as
the general population, while guards encourage other immigrants to
verbally harass the caged immigrants.1
degrading treatment or punishment went as far as finding the treatment of LGBT
immigrants in U.S. detention facilities in violation of the Convention Against
Torture after it received information on gay and transgender individuals who had
been subjected to solitary confinement, torture, and ill-treatment—including
sexual assault—while detained in U.S. immigration facilities.3
This report will examine the mistreatment LGBT immigrants face in immigration
detention; the steps that Immigration and Customs Enforcement, or ICE, has
taken in an attempt to address these issues; the impact that legislation pending
before Congress would have on immigration enforcement; and recommendations
for how to ensure enforcement of immigration laws is conducted in a manner that
is effective and humane.
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Abuse in immigration detention
Each day, a congressional mandate requires ICE to hold 34,000 immigrants who
may be subject to removal for violations of administrative immigration law in
more than 250 detention facilities nationwide, including county and private jails.4
Prior to 1996, immigrants in removal proceedings were not detained unless they
were found to be a flight risk or pose a threat to national security.5 At that time,
Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 and
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.6 These
laws greatly expanded the scope of who is subject to mandatory detention during
removal proceedings without a hearing before an immigration judge to determine
whether they should be detained. In 1996, the Immigration and Naturalization
Service, or INS, held 8,500 immigrants in detention facilities. This number nearly
doubled after the 1996 laws passed, as nearly 16,000 detainees were held in
confinement in 1998.7 Today, DHS holds more than twice as many immigrants in
detention each day as INS did during the entirety of 1998.8
Among those caught up in this mandatory detention are survivors of torture
and asylum seekers—individuals whose past persecution makes them particularly vulnerable to the mental health strain brought on by conditions in detention. Numerous studies show that even in relatively well-run facilities, detention
itself is a threat to the psychological health of detainees, exacerbating the severe
psychological distress frequently found in survivors of torture and asylum seekers.9 Current law requires mandatory detention for all asylum seekers who enter
the United States without proper documentation. Due to the complex nature of
asylum cases, asylum seekers spend more time in immigration detention facilities
than do other detainees. Whereas the average detainee length of stay is 30 days,
the average stay for asylum seekers is 102.4 days.10 Since nearly 80 countries have
laws criminalizing people who are LGBT, many LGBT asylum seekers in search
of safety and security in the United States are instead locked away in our jail-like
immigration detention facilities.11
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Today, DHS holds
more than twice as
many immigrants
in detention each
day as INS did
during the entirety
of 1998.
In addition to the baseline trauma that people face when detained and deprived of
their liberty, abuse of LGBT immigrants has been well documented by immigration advocates nationwide. Heartland Alliance’s National Immigrant Justice Center,
or NIJC, filed 17 complaints in 2011 with DHS’s Office for Civil Rights and Civil
Liberties, or CRCL, and Office of Inspector General, or OIG, in response to reports
of abuse against LGBT immigrants in DHS custody.12 NIJC’s complaints documented
mistreatment in immigration detention facilities nationwide, indicating the systemic
nature of the mistreatment of LGBT immigrants in immigration detention facilities.13
The complaints include incidents of sexual assault, denial of adequate medical
care, long-term solitary confinement, discrimination and abuse, and ineffective
complaints and appeals processes.
One complaint describes the treatment of an individual called T, who was sexually
assaulted by a guard while placed in administrative segregation in the Eloy Detention Center in Eloy, Arizona. She was granted Withholding of Removal, a form of relief
similar to asylum, which prevents enforcing an order of removal in cases where it is
more likely than not that the individual would face persecution if returned to his or
her country of origin. Despite this, T was not released from ICE custody for another
three months, during which time she was sexually assaulted a second time.14
In addition to the incidents of abuse described in NIJC’s complaints, other complaints
have documented LGBT detainees being called names such as “faggot” by guards and
being told to “walk like a man, not a gay man” and “act male.”15 Furthermore, detainees
are frequently housed with detainees of a gender with which they do not identify.16
This means that female transgender detainees are detained with men.
Bamby Salcedo came to the United States to escape persecution in Mexico on account of her gender identity. After she made her asylum claim, she was placed in
an immigration detention facility while she waited for her claim to be adjudicated.
Despite her gender identity, Bamby was placed in a male housing facility, where she
was forced to shower alongside approximately 10 men who would verbally harass
her in the bathroom.17 Once, a male detainee assaulted her in the bathroom, fracturing her nose. After the attack, the detention facility moved Bamby into administrative segregation in an attempt to protect her from further abuse. As Bamby notes, “as
transgender people, we are placed in that unit because of who we are.”18
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Whereas the
average detainee
length of stay is 30
days, the average
stay for asylum
seekers is 102.4
days.
CAP FOIA request reveals dangerous conditions for LGBT
immigrants in detention
On September 4, 2013, the Center for American Progress submitted a FOIA request
to the DHS OIG. The complaints unearthed by the request reveal the systemic
nature of abuse against LGBT detainees in ICE facilities. The request sought records
of complaints and/or investigations involving ICE made by LGBT detainees in
ICE facilities from fiscal year 2008 to the present. The request turned up nearly 200
reports of abuse. Unfortunately, ICE does not keep records of the sexual orientation
or gender identity of immigrants in its custody; therefore, the FOIA request only
turned up incidents in which the summary of the allegation mentions the immigrant’s sexual orientation or gender identity. Additionally, these are only instances
of abuse that were reported to ICE by attorneys and detainees. Since immigrants
in ICE custody often fear retaliation if they submit a complaint, formal reports of
abuse are rare.19 Thus, these complaints likely illustrate only a fraction of the actual
instances of abuse against LGBT immigrants that occur nationwide.
The complaints obtained through this request include incidents of sexual assault
by guards and fellow detainees, withholding of medical treatment, verbal and
physical abuse by guards and fellow detainees, the use of solitary confinement
based solely on the sexual orientation or gender identity of the immigrant, incidents of LGBT immigrants being humiliated by guards in front of other detainees, and inappropriate use of restraints in violation of ICE’s Performance-Based
National Detention Standards, or PBNDS.20 The exact language of the verbal
abuse, as well as the forms of physical abuse, was redacted in the FOIA results.
Taken together, the data from immigration advocates, attorney complaints, and
the CAP FOIA request illustrate a number of issues faced by LGBT immigrants in
immigration detention facilities, each reviewed below. We also offer an analysis of
recent policy changes.
Sexual assault
In its 2009 report, The National Prison Rape Elimination Commission found that
immigration detainees are especially vulnerable to sexual abuse because of the
social isolation they face from being detained away from friends and family and
because they may not speak the same language as other detainees or staff.21 Since
immigration detainees are detained by DHS—the same agency that has the power
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to deport them—guards in these facilities have a high degree of control over
detainees, who may believe the guards are able to impact decisions concerning
their deportation status.
After numerous complaints of abuse surfaced, a Department of Justice, or DOJ,
investigation into Krome in 2000 found that nearly 10 percent of female detainees
reported sexual misconduct by INS, the precursor to ICE, officers.22 Reports of
sexual abuse at Krome continue to this day, including a 2011 incident in which an
ICE officer abducted an immigrant during a transfer and raped her in his home.23
A 2010 report by Human Rights Watch on sexual assault in immigration detention
facilities concluded that “the problem cannot be dismissed as a series of isolated
incidents” and “there are systemic failures at issue.”24 In its work, NIJC found
incidents of sexual assault against LGBT detainees by fellow detainees and by
guards employed by detention facilities.25 The American Civil Liberties Union, or
ACLU, filed a lawsuit against ICE on October 19, 2011, after finding that nearly
200 incidents of sexual assault had occurred in its detention facilities since 2007.26
An immigration attorney reported an incident to the ACLU of Arizona in 2009
of a client who was detained in the ICE facility in Florence, Arizona, while he
awaited a decision in his asylum case. While in detention, another detainee raped
the client in the bathroom. After the rape, the client was placed in isolation, where
he relived his trauma. Whenever guards brought him out of isolation to meet with
his attorney, he was shackled at his hands, feet, and waist.27
Solitary confinement
In response to the sexual assault and harassment of LGBT immigrants in detention facilities, many facilities place LGBT immigrants in administrative segregation, or solitary confinement, in an attempt to protect them from the general
population. The use of solitary confinement is commonly associated with a
multitude of psychological effects, including hyper-sensitivity to external stimuli,
hallucinations, panic attacks, obsessive thoughts, and paranoia.28 The U.N. Special
Rapporteur on torture concluded that solitary confinement becomes “prolonged”
at 15 days, after which the psychological effects may become irreversible.29
The misuse of solitary confinement for LGBT detainees has been well documented in reports by nongovernmental organizations and in a 2013 New York
Times article that found that each day, nearly 300 individuals are kept in solitary
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confinement in immigration detention facilities.30 In a 2010 report, the InterAmerican Commission on Human Rights stated that it was “deeply troubled
by the use of confinement (‘administrative segregation’ or ‘disciplinary segregation’) in the case of vulnerable immigration detainees, including members of the
LGBT community,” and reported that “using confinement to protect a threatened
population amounts to a punitive measure.”31 NIJC found incidents of detainees
being held in isolation for four months in a 9-by-13-foot cell simply because an
individual presented “effeminately.”32 Solitary confinement is also used nationwide
as a means of “protective custody” for LGBT detainees.33 As mentioned above, the
ACLU of Arizona found cases of LGBT detainees placed in solitary confinement
in response to being sexually assaulted by fellow detainees.34
Inadequate medical care
The inadequacy of medical care in immigration detention facilities has been well
documented as a systemic problem throughout ICE detention facilities.35 LGBT
and HIV-positive detainees are at particular risk of lacking access to proper treatment. In 2007, Victoria Arellano, an HIV-positive female transgender migrant,
died in the men’s mass detention cell of an ICE detention facility because authorities at the facility refused to give her medical attention and her medication.36
NIJC also found that HIV-positive individuals detained by ICE were harassed and
mistreated and encountered serious problems accessing HIV medication.37
Another frequent medical issue faced by LGBT immigrants in ICE custody is
the denial of hormone treatment to detained transgender individuals, a denial
which many U.S. Circuit Courts have found to be in violation of the Eighth
Amendment’s requirement that the incarcerated receive “adequate medical care.”38
The 2011 PBNDS medical care standard provides for continued access to hormone therapy for transgender detainees who were already receiving hormone
therapy prior to being taken into ICE custody; however, these standards are not
mandatory.39 Even at the dedicated LGBT protective-custody unit in the Santa
Ana City Jail in Santa Ana, California, there have been instances of transgender
asylum seekers whose medical records took from 35 to 45 days to arrive at the jail,
delaying their access to hormone therapy for one to four months, treatment that
the American Medical Association and American Psychological Association have
affirmed is medically necessary.40
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ICE’s attempts to address the
needs of LGBT detainees
ICE has taken numerous steps to respond to the reports of abuse and mistreatment of LGBT immigrants in detention facilities; unfortunately, its efforts have
proven to be inadequate to meet the particular needs of LGBT immigrants. This
section details ICE’s responses to date.
2011 Performance-Based National Detention Standards and ICE
detention reform initiative
National Detention Standards were created in 2000 to govern the treatment of
immigrants in detention facilities.41 These standards mostly mirror the American
Correctional Association standards for pretrial felons and include guidance on
permissible use of force, shackling, medical care, access to legal materials, provision of clothing and bedding, religious practices, and other areas of detention
administration and detainee rights. An internal review of ICE detention practices
conducted in 2009 found that the penal model the ICE standards were modeled on was inappropriate for the immigration detention population and that it
imposed more restrictions than were necessary to effectively operate ICE facilities.42 Beginning in 2008, ICE enacted Performance-Based National Detention
Standards to govern its detention facilities, and the 2009 review contributed to
changes made in the 2011 PBNDS. The detention standards, however, are voluntary guidelines without the force of law behind them.43 Since the standards are not
mandatory, detention facilities are not required to adhere to them, and there is
no judicial oversight to ensure adherence. This lack of accountability is troubling,
as a 2009 assessment found that 50 percent of immigration detainees are housed
in facilities that are not subject to detention standards.44 Today, ICE monitors
compliance with detention standards in 52 facilities, which house 84 percent of
immigrants in ICE custody.45
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In 2011, ICE released PBNDS that included for the first time important safeguards for LGBT immigrants.46 These protections include recognizing transgender detainees as a vulnerable population, conducting strip searches of transgender
detainees in private, basing housing decisions for transgender detainees on the
detainee’s gender self-identification rather than solely on physical anatomy, and
allowing transgender detainees who received hormone therapy before detention
to have continued access.
ICE sexual abuse and assault prevention and intervention directive
In 2012, ICE created policies and procedures to address sexual assault in immigration detention facilities, including a mandatory training for staff on ICE’s
zero-tolerance policy for sexual abuse and assault, as well as on “communicating
effectively and professionally with lesbian, gay, bisexual, and transgender individuals.”47 The guidance also requires an annual review and report of incidents
of sexual assault of individuals in ICE custody; it does not, however, require
data to be gathered on the sexual orientation or gender identity of victims,
reducing its effectiveness.
ICE’s directive is a welcome development, but a recent report by the
Government Accountability Office, or GAO, found that ICE has not developed
the controls necessary to ensure that field-office officials are in compliance with
the guidance. The GAO examined 215 allegations of sexual abuse and assault
in ICE detention facilities from October 2009 through March 2013. Its report
found that 40 percent of sexual assault allegations were never reported to ICE
headquarters and that not only do ICE field offices not comply with reporting
requirements to headquarters, but immigration detainees also face barriers to
reporting abuse. From 2010 to 2014, for example, 14 percent of calls placed
to the DHS OIG hotline—one of the means for reporting abuse—from ICE
detention facilities did not go through. Of the 215 investigations into allegations of sexual abuse and assault, only 7 percent were substantiated. In other
words, investigators determined abuse had occurred in only 7 percent of cases.
Frequently cited reasons for the low substantiation number are that the alleged
victim chose not to cooperate with the investigation or that there was no evidence of the assault, and local law enforcement chose not to pursue the case.48
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In addition to these shortcomings in implementing ICE’s guidance on sexual
assault, the particular vulnerability of LGBT immigrants to sexual violence in
detention facilities—as described by the National Prison Rape Elimination
Commission and graphically illustrated by advocates and attorneys working with
this population—indicates that detention facilities are inherently unsafe spaces for
LGBT immigrants.
Santa Ana City Jail protective-custody unit
In response to NIJC’s complaint on the deplorable treatment of LGBT immigrants in ICE detention facilities, ICE created a specialized facility to house LGBT
immigrants at the Santa Ana City Jail.49 The unit has 64 beds reserved for LGBT
individuals to ensure that they are segregated from the rest of the jail’s population.
ICE’s contract with the Santa Ana City Jail requires staff to undergo an eighthour “specialized LGBT training.”50 The staff underwent training conducted by
NIJC in November 2012 and training conducted by professors at California State
University, Fullerton, in July 2013.
Despite the training, however, visitor volunteers from the Community Initiatives
for Visiting Immigrants in Confinement, or CIVIC, documented incidents of
guards telling transgender, asylum-seeking women to “use their male voice” and
“act male” and using male pronouns when speaking about them to others.51 The
organization also found that transgender asylum seekers who were transferred
to the facility did not have access to hormone therapy for one to four months,
care that does not meet the PBNDS standard of providing treatment that follows
accepted guidelines regarding medically necessary transition-related care.52 When
Christina Fialho, CIVIC’s co-founder and executive director, went public with
her findings in The Huffington Post in July 2013,53 ICE responded by suspending
CIVIC’s visitation program in three Southern California detention facilities.54
ICE directive on solitary confinement
In September, the Department of Homeland Security released new rules on
the use of solitary confinement that explicitly forbid placing immigrants in
solitary confinement solely because of gender identity or sexual orientation.55
This directive is a welcome step in the right direction; however, conversations
with immigration attorneys have revealed that instead of automatically releas-
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ing LGBT immigrants from solitary confinement, DHS only releases them upon
their attorneys’ requests. Approximately 84 percent of immigrants in detention
facilities lack legal representation; therefore, while it is not yet clear how the new
directive impacts unrepresented LGBT immigrants in solitary confinement, it is
likely that there are considerable numbers of individuals who are not yet being
released under the directive.56 But with the directive having only gone into effect
in September, facilities may still be becoming acquainted with the directive and
may soon begin automatically releasing LGBT immigrants from solitary confinement without the intervention of an attorney.
ICE’s directive falls short because it does not specify that solitary confinement
should be used only for brief periods of time and in the least restrictive conditions
possible. It also does not set specific limits for the total amount of time a vulnerable individual can be placed in solitary confinement.57
While the directive does not solve every problem, it does require reporting
about and oversight of the use of solitary confinement in immigration detention.
Whereas the old rules required reporting only after an immigrant was placed in
solitary confinement for more than a month, the new policy includes reporting requirements in which facilities must justify—in writing to DHS—why an
immigrant is kept in solitary confinement for more than two weeks. This reporting
requirement will allow ICE to monitor the use of solitary confinement in all of its
detention facilities nationwide.58
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Impact of increased enforcement
in pending legislation on LGBT
immigrants
Senate Border Security, Economic Opportunity, and Immigration
Modernization Act of 2013, or S. 744
On June 27, the Senate passed the bipartisan Border Security, Economic
Opportunity, and Immigration Modernization Act of 2013 by a vote of 68 to 32.59
Although the bill calls for dramatic increases in immigration enforcement spending, including $46.3 billion to double the number of Border Patrol agents and
build 700 miles of fencing across the southern border, it couples these measures
with important safeguards for immigrants—safeguards that are especially critical
in light of the particular vulnerabilities faced by LGBT immigrants in our immigration system detailed above.
The centerpiece of the Senate bill is an earned path to citizenship that would benefit more than 267,000 undocumented LGBT adults currently living in daily fear of
being detained and deported from the United States.60 Currently, they live in fear
of being separated from their families and communities and returned to countries
that they no longer consider their homes, countries where they may even be in
danger because of their sexual orientation or gender identity. This practice violates
a basic cornerstone of international asylum and refugee law: nonrefoulment, or
the prohibition against returning a person to any country where he or she would
be at risk of persecution.61 The Senate bill also includes an expedited path to
citizenship for DREAMers—undocumented immigrants who were brought to the
United States as children. The United States is the only home many of them know.
This provision will be particularly beneficial to LGBT undocumented immigrants,
since they tend to be younger than the general undocumented immigrant population, with undocumented adult immigrants under age 30 being twice as likely to
identify as LGBT as the broader population.62
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In addition to providing a path to earned citizenship, the bill would protect LGBT
asylum seekers fleeing persecution by eliminating the one-year filing deadline.
This deadline bars asylum seekers from applying for asylum one year after their
arrival in the United States unless they can demonstrate changed or extraordinary circumstances. A study by NIJC, Human Rights First, and Penn State Law
estimates that one in five asylum applicants fail to meet the deadline.63 The Senate
bill would remove an administrative barrier that has put countless LGBT asylum
seekers at risk of being returned to countries where they are in danger of persecution on the basis of their sexual orientation or gender identity. Applications for
asylum based on persecution on account of sexual orientation or gender identity
are difficult cases to make, since, for example, LGBT asylum seekers frequently
must hide their sexual orientation or gender identity in their home countries and
thus may have difficulty meeting evidentiary requirements to win asylum.
The Senate bill provides for additional immigration judges, staff, and training programs to improve adjudication of these complex claims. Under current law, immigrants in removal proceedings do not have a right to counsel if they cannot afford
to pay for an attorney. The Senate bill seeks to rectify this by requiring a lawyer to
be appointed to represent unaccompanied minor children, immigrants with serious
mental disabilities, and other particularly vulnerable individuals. It also expands
and funds Legal Orientation Programs, which educate immigrants in deportation
proceedings on their rights, immigration court, and the detention process.
In addition to procedural safeguards, the bill contains numerous safeguards to
protect LGBT immigrants from the abuses they face in immigration detention,
including increased oversight of detention facilities. It explicitly prohibits the use
of solitary confinement solely because of an immigrant’s sexual orientation or gender identity, codifying DHS’s new directive on solitary confinement. Furthermore,
it provides for the use of humane alternatives to detention so that vulnerable
populations such as LGBT immigrants are placed in secure alternatives to detention pending a decision in their cases, rather than confined in jail-like facilities
where they are at risk of torture and abuse.
House Border Security, Economic Opportunity, and Immigration
Modernization Act, or H.R. 15
On October 2, House Minority Leader Nancy Pelosi (D-CA) and several other
Democrats introduced a bill to reform U.S. immigration laws.64 The bill includes
all of the provisions detailed above from the Senate bill that would benefit LGBT
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immigrants, such as a path to citizenship for undocumented immigrants and
elimination of the one-year filing deadline, but it differs in one significant way. The
House version of the bill does not include the Senate bill’s border-surge provisions. In other words, it provides necessary safeguards for vulnerable immigrants
without risking the exposure of more LGBT immigrants to our immigration
enforcement and detention system.
SAFE Act, or H.R. 2278
The Strengthen and Fortify Enforcement, or SAFE, Act was introduced by Rep. Trey
Gowdy (R-SC) on June 6.65 If enacted, the SAFE Act would do nothing to resolve
the legal status of 11 million undocumented immigrants but would significantly
expand immigration enforcement66 practices by making mere unlawful presence—
such as undocumented status and overstaying a visa—criminal acts punishable
with jail time, and it would greatly expand the detention of immigrants. It would
also allow state and local governments to create their own draconian immigration
enforcement provisions, allowing them to enact their own criminal penalties for violations of federal immigration laws, much like the provisions in Arizona’s immigration law that were recently overturned by the Supreme Court.67
The SAFE Act would exacerbate the dangers faced by LGBT immigrants in our
immigration system by vastly widening the category of immigrants subject to
mandatory detention, potentially subjecting even more LGBT immigrants to
the unsafe conditions of immigration detention facilities. It would allow local
law enforcement to arrest individuals on the suspicion that a person has committed an immigration violation, increasing the risk of racial profiling, and
would require ICE to detain anyone a state or local government identifies as
being inadmissible or deportable, removing DHS’s discretion over whether to
detain or release the individual.
This legislation is particularly dangerous for LGBT asylum seekers who missed
the one-year filing deadline. If a judge finds that an asylum seeker missed the
one-year filing deadline but determines the risk of persecution if deported is more
likely than not, the judge can grant the asylum seeker Withholding of Removal,
which prevents enforcement of a final order of removal. Under current law, immigrants who cannot be deported are eligible to file a writ of habeas corpus in federal
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district court if they have been detained for more than six months. This is because
the Supreme Court determined that six months is a reasonable period of time for
the government to remove a deportable immigrant.68 The SAFE Act would enable
DHS to hold immigrants with no significant likelihood of removal, such as LGBT
asylum seekers granted Withholding of Removal, indefinitely in jail-like immigration detention facilities.
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Recommendations
As this report details, when LGBT immigrants are detained by ICE, they are
particularly vulnerable to abuse and mistreatment. Both the Senate’s immigration
reform bill and the SAFE Act would greatly expand the number of LGBT immigrants that will likely be detained by ICE under expanded immigration enforcement efforts. ICE’s efforts to protect this vulnerable population, while appreciated,
have not adequately addressed the problem. The following are CAP’s recommendations for how to protect LGBT immigrants.
Increase the use of alternatives to detention
There are a number of alternatives to detention, including monitoring through the
use of electronic ankle bracelets or through supervised-release programs. At the
request of INS, the precursor to DHS, the Vera Institute of Justice implemented
a pilot project, the Appearance Assistance Program, to study appearance rates in
removal hearings for individuals released into a form of supervised release.69 Ninetyone percent of participants in the pilot project appeared for all of their required
hearings. The high rate of appearance in removal hearings under the Appearance
Assistance Program suggests that mandatory detention is not necessary to ensure
that appearance at hearings, the objective of mandatory detention, is met.
In addition, alternatives to detention provide a wide range of benefits for the state
as well as individuals. They are safer for LGBT immigrants, allowing them to be
released from jail-like detention facilities where they face abuse and discrimination. They are also more cost effective than detention. The Vera project cost $12
per immigrant per day, while the average cost of detaining an immigrant in an ICE
facility is $122 per day, totaling $2 billion per year.70 Release into alternatives to
detention also allows immigrants greater access to resources to build their cases, a
very important additional benefit for LGBT immigrants seeking asylum.71
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Eliminate the bed mandate from congressional appropriations language
The number of people detained by ICE should be determined by necessity, not
by an arbitrary quota set by Congress. The decision to detain an individual should
be based on a case-by-case assessment that can be reviewed by an immigration
judge. Eliminating the bed mandate would not eliminate immigration detention,
nor would it eliminate mandatory detention provisions in current immigration
law. Without the bed mandate, however, ICE would have the flexibility to shift
resources to less costly alternatives to detention as needed.
Codify PBNDS and make them mandatory for all facilities that ICE uses to
detain immigrants, with independent oversight of detention conditions
ICE’s PBNDS include important safeguards and protections for LGBT immigrants, such as guaranteeing that transgender detainees have access to hormone
therapy. Unfortunately, these standards are not currently mandatory for detention
facilities, and immigrants have no recourse for violations of detention standards.
If a transgender individual must be detained, ICE’s policy should be to place the
individual in housing that is consistent with the individual’s gender identity, not
the anatomy or sex assigned at birth.
Require Legal Orientation Programs in all immigration detention facilities
Immigration law is an extremely complex area of law. Unfortunately, approximately 84 percent of immigrants in detention facilities are not represented by
a lawyer and must navigate these laws by themselves. For immigrants facing
deportation, particularly LGBT immigrants at risk of being sent back to countries
where their lives are at risk, the stakes are incredibly high. This makes access to
Legal Orientation Programs critical for protecting the basic rights of immigrants
in removal proceedings. These programs provide basic information to immigrants
about forms of relief from removal, how to represent themselves in immigration
court, and how to get legal representation.
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Require access to counsel for immigrants in removal proceedings
A study by immigration law professors found that access to counsel is the singlebiggest determining factor in the outcome of an asylum case.72 Furthermore,
immigrant advocates, the American Bar Association, and even some immigration
judges argue that providing attorneys in removal hearings would lower costs,
lessen backlogs, and provide critical due-process protections.73 For LGBT asylum
seekers trying to establish a difficult claim before an immigration judge, the
assistance of an attorney can make all the difference in ensuring that they are not
deported to a country where their lives are at risk.
Restore discretion to immigration judges
Historically, immigration judges could have considered a range of individual
factors in determining whether it was in the best interests of the United States to
allow an immigrant to remain in the country. Congress drastically limited judicial discretion in the 1990s by creating a category of violations called aggravated
felonies.74 Not all of these offenses are aggravated or felonies in the criminal law
context. Today, immigration judges have no discretion in the decision to detain
immigrants who committed aggravated felonies, nor the ability to grant them
relief to remain in the United States, regardless of how compelling their individual
circumstance is or how minor or old their convictions are. Restoring judicial
discretion in immigration cases would allow judges to consider the individual circumstances and particular vulnerabilities of immigrants, including LGBT immigrants who would be placed in harm’s way if deported from the United States.
Enforce Prison Rape Elimination Act standards in immigration detention
facilities
The Prison Rape Elimination Act, despite the National Prison Rape Elimination
Commission’s recommendation that preventing sexual abuse in immigration
detention facilities requires precautions beyond those required in prisons, does
not govern immigration detention facilities.75 ICE created a standard on sexual
assault in detention facilities, but comments by a number of LGBT advocacy organizations show that DHS’s standards are not as comprehensive as DOJ’s and fall
short of what is needed to protect LGBT immigrants in detention facilities.76
18 Center for American Progress | Dignity Denied
Conclusion
From sexual assault to lack of access to proper medical care, LGBT immigrants
are particularly vulnerable to abuse and mistreatment in immigration detention facilities on account of their sexual orientation or gender identity. While
we support DHS’s efforts to better care for the LGBT immigrants in its custody,
its efforts have not succeeded in adequately meeting the particular needs of this
demographic. As Congress debates reforms to our broken immigration system, it
is critical that these reforms protect LGBT immigrants in DHS custody, promote
due process, and preserve human dignity.
19 Center for American Progress | Dignity Denied
Author bio
Sharita Gruberg is a Policy Analyst for the LGBT Immigration Project at the
Center for American Progress. She has extensive experience working in immigration advocacy, law, and policy, as well as experience providing direct service to
immigration detainees, refugees, and asylum seekers.
20 Center for American Progress | Dignity Denied
Acknowledgements
The author would like to acknowledge the organizations that are highlighting
the challenges LGBT immigrants face in detention through their work, the
amazing people who make up CAP’s Immigration team, and LGBT Progress
for their assistance with this report. She would also like to thank Wellspring
Advisors for its generous assistance in supporting CAP’s efforts to address the
needs of LGBT immigrants.
21 Center for American Progress | Dignity Denied
Endnotes
1 Americans for Immigrant Justice, phone interview with
author, August 28, 2013.
2 Just Detention International, “A Call for Change: Protecting the Rights of LGBTQ Detainees” (2009).
3 U.N. General Assembly, “Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, Juan E. Méndez” (2013).
4 Ian Urbina, “Immigrants Held in Solitary Cells, Often
for Weeks,” The New York Times, March 23, 2013,
available at http://www.nytimes.com/2013/03/24/
us/immigrants-held-in-solitary-cells-often-for-weeks.
html?pagewanted=all&_r=0; William Selway and
Margaret Newkirk, “Congress’s Illegal-Immigration
Detention Quota Costs $2 Billion a Year,” Bloomberg
Businessweek, September 26, 2013, available at
http://www.businessweek.com/articles/2013-09-26/
congresss-illegal-immigration-detention-quota-costs2-billion-a-year#r=nav-r-story.
5 See Matter of Patel, 15 I & N Dec. 666, 666 (BIA 1976).
6 8 USC§ 1226(c) (2006).
16 American Civil Liberties Union, “In Their Own Words”
(2011), p. 22, available at http://www.acluaz.org/sites/
default/files/documents/detention%20report%202011.
pdf.
17 Crosby Burns, Ann Garcia, and Philip E. Wolgin, “Living
in Dual Shadows: LGBT Undocumented Immigrants”
(Washington: Center for American Progress, 2013),
available at http://www.americanprogress.org/issues/
immigration/report/2013/03/08/55674/living-in-dualshadows/.
18 Ibid.
19 Just Detention International, “No Refuge Here: Sexual
Abuse in Immigration Detention” (2013), available at
http://www.justdetention.org/pdf/JDI-OVW-Immigration-Detention-webinar-handout-062613.pdf.
20 U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011 (U.S.
Department of Homeland Security, 2011), available at
http://www.ice.gov/doclib/detention-standards/2011/
pbnds2011.pdf.
7 American Civil Liberties Union, “Analysis of Immigration
Detention Policies,” available at https://www.aclu.org/
immigrants-rights/analysis-immigration-detentionpolicies (last accessed November 2013).
21 National Prison Rape Elimination Commission,
“National Prison Rape Elimination Commission Report”
(2009), available at http://cybercemetery.unt.edu/
archive/nprec/20090820155502/http://nprec.us/files/
pdfs/NPREC_FinalReport.PDF.
8 Statistic is based on author’s analysis.
22 Ibid.
9 University of Oxford, “Forced Migration Review” (2013);
U.S. Commission on International Religious Freedom,
“Assessing the U.S. Government’s Detention of Asylum
Seekers: Further Action Needed to Fully Implement
Reforms” (2013); Allen S. Keller, “Congressional Briefing on Medical Treatment at Immigration Detention
Centers,” Testimony before the House Subcommittee
on Immigration, Citizenship, Refugees, Border Security,
and International Law, July 9, 2007, available at https://
www.aclu.org/immigrants-rights/testimony-allen-skeller-md-immigration-detention-conditions; Allen
Keller, “From Persecution to Prison: The Health Consequences of Detention for Asylum Seekers” (New York:
Physicians for Human Rights, 2003).
23 Americans for Immigrant Justice, “Statement for the
Record Submitted by M.C.,” March 26, 2011, available at
http://aijustice.org/wp-content/uploads/2012/02/201103-26-MC-A-Brutal-Rape.pdf.
10 Human Rights First, “Jails and Jumpsuits” (2011).
11 International Lesbian, Gay, Bisexual, Trans and Intersex
Association, “Download ILGA State-Sponsored Homophobia Report and Gay and Lesbian rights maps,”
available at http://ilga.org/ilga/en/article/1161 (last
accessed November 2013).
12 National Immigrant Justice Center, “Stop Abuse of
Detained LGBT Immigrants,” available at http://www.
immigrantjustice.org/stop-abuse-detained-lgbt-immigrants (last accessed November 2013).
13 Email from National Immigrant Justice Center to
Margo Schlanger, April 13, 2011, available at http://
www.immigrantjustice.org/sites/immigrantjustice.org/
files/OCRCL%20Global%20Complaint%20Letter%20
April%202011%20FINAL%20REDACTED.pdf.
14 Ibid.
15 Ibid.; Christina Fialho, “Who Is Overseeing Immigration
Detention?”, HuffPost Politics, July 22, 2013, available at
http://www.huffingtonpost.com/christina-fialho/whois-overseeing-immigration-detention_b_3632009.html.
24 Human Rights Watch, “Detained and at Risk” (2010).
25 Email from National Immigrant Justice Center to Schlanger.
26 American Civil Liberties Union, “Documents Obtained
by ACLU Show Sexual Abuse of Immigration Detainees
Is Widespread National Problem,” October 19, 2011,
available at http://www.aclu.org/immigrants-rightsprisoners-rights-prisoners-rights/documents-obtainedaclu-show-sexual-abuse.
27 American Civil Liberties Union, “In Their Own Words.”
28 Christy Carnegie Fujio, Kristine Huskey, and Mike Corradini, “Buried Alive: Solitary Confinement in the US
Detention System” (New York: Physicians for Human
Rights, 2013).
29 Ibid.
30 Urbina, “Immigrants Held in Solitary Cells, Often for
Weeks.”
31 Inter-American Commission on Human Rights, “Report
on Immigration in the United States: Detention and
Due Process” (2010).
32 Email from National Immigrant Justice Center to Schlanger.
33 Urbina, “Immigrants Held in Solitary Cells, Often for
Weeks.”
22 Center for American Progress | Dignity Denied
34 American Civil Liberties Union, “In Their Own Words.”
35 Dana Priest and Amy Goldstein, “System of Neglect,” The
Washington Post, May 11, 2008, available at http://www.
washingtonpost.com/wp-srv/nation/specials/immigration/cwc_d1p1.html.
36 Leslie Feinberg, “Death of trans immigrant in detention
forges united protests,” Portland Independent Media
Center, September 8, 2007, available at http://portland.
indymedia.org/en/2007/09/364859.shtml.
37 Email from National Immigrant Justice Center to Schlanger.
38 Meriwether v. Faulkner, 821 F.2d 408,413 (7th Cir. 1987).
See also Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir.
2000); De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir.
2003); Phillips v. Mich. Dept. of Corr., 932 F.2d 969 (6th
Cir. 1991); White v. Farrier, 849 F.2d 332, 325-327 (8th
Cir. 1988); Allard v. Gomez, 9 Fed. Appx. 793, 794 (9th
Cir. 2001); Brown v. Zavaras, 63 F.3d 967, 970 (10th Cir.
1995).
39 U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011.
40 Christina Fialho, “A Model Immigration Detention
Facility for LGBTI?”, Forced Migration Review (42) (2013):
50–51, available at http://www.fmreview.org/sogi/
fialho.
41 Alison Siskin, “Immigration-Related Detention: Current Legislative Issues” (Washington: Congressional
Research Service, 2012), available at http://www.fas.
org/irp/crs/RL32369.pdf; U.S. Immigration and Customs
Enforcement, Detention Operations Manual (U.S. Department of Homeland Security, 2000), available at http://
www.ice.gov/detention-standards/2000/.
42 Dora Schriro, “Immigration and Detention Overview
and Recommendations” (Washington: U.S. Immigration
and Customs Enforcement, 2009), available at http://
www.ice.gov/doclib/about/offices/odpp/pdf/icedetention-rpt.pdf.
43 U.S. Immigration and Customs Enforcement, 2008 Operations Manual ICE Performance-Based National Detention Standards (PBNDS) (U.S. Department of Homeland
Security, 2008), available at http://www.ice.gov/
detention-standards/2008/index.htm; U.S. Immigration
and Customs Enforcement, Performance-Based National
Detention Standards 2011.
44 Schriro, “Immigration and Detention Overview and
Recommendations.”
45 Kevin Landy, “Written testimony of U.S. Immigration
and Customs Enforcement Office of Detention Policy
and Planning Assistant Director Kevin Landy for a
House Committee on the Judiciary, Subcommittee
on Immigration Policy and Enforcement hearing on
Performance-Based National Detention Standards
(PBNDS) 2011,” U.S. Department of Homeland Security,
March 27, 2012, available at http://www.dhs.gov/
news/2012/03/27/written-testimony-us-immigrationand-customs-enforcement-house-judiciary.
46 U.S. Immigration and Customs Enforcement, Performance-Based National Detention Standards 2011.
47 U.S. Immigration and Customs Enforcement, 11062.1:
Sexual Abuse and Assault Prevention and Intervention
(U.S. Department of Homeland Security, 2012), available at http://www.ice.gov/doclib/foia/dro_policy_
memos/sexual-abuse-assault-prevention-interventionpolicy.pdf.
48 Government Accountability Office, “Immigration Detention: Additional Actions Could Strengthen DHS Efforts
to Address Sexual Abuse,” GAO-14-38 (2013), available
at http://www.gao.gov/assets/660/659145.pdf.
49 Fialho, “A Model Immigration Detention Facility for
LGBTI?”
50 U.S. Department of Homeland Security and City of
Santa Ana, California, “Contract for use of Santa Ana
City Jail,” available at http://blog.endisolation.org/wpcontent/uploads/2012/12/ICE-Transgender-Attachement.pdf (last accessed November 2013).
51 Fialho, “A Model Immigration Detention Facility for
LGBTI?”
52 Fialho, “Who Is Overseeing Immigration Detention?”;
Lamda Legal, “Professional Organization Statements
Supporting Transgender People in Health Care,” available at http://www.lambdalegal.org/sites/default/files/
publications/downloads/fs_professional-org-statements-supporting-trans-health_1.pdf (last accessed
November 2013).
53 Fialho, “Who Is Overseeing Immigration Detention?”
54 Letter from Christina Fialho, Jan Meslin, and Victoria
Mena to John Morton and David Marin, August 1, 2013,
available at http://www.aclusocal.org/civic-letter/.
55 U.S. Immigration and Customs Enforcement, 11065.1:
Review of the Use of Segregation for ICE Detainees (U.S.
Department of Homeland Security, 2013), available at
http://www.ice.gov/doclib/detention-reform/pdf/segregation_directive.pdf.
56 Nina Siulc and others, “Improving Efficiency and
Promoting Justice in the Immigration System” (New
York: Vera Institute of Justice, 2008), available at http://
www.vera.org/sites/default/files/resources/downloads/
LOP_Evaluation_May2008_final.pdf.
57 Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744, 113 Cong. 1 sess.
(Government Printing Office, 2013).
58 U.S. Immigration and Customs Enforcement, 11065.1:
Review of the Use of Segregation for ICE Detainees.
59 Ibid.
60 Sharita Gruberg, “What Immigration Reform Means
for the LGBT Community,” Center for American
Progress, June 11, 2013, available at http://www.
americanprogress.org/issues/immigration/
news/2013/06/11/65942/what-immigration-reformmeans-for-the-lgbt-community/.
61 U.N. General Assembly, “Convention Relating to the
Status of Refugees” (1951), p. 137, available at http://
www.refworld.org/docid/3be01b964.html.
62 Burns, Garcia, and Wolgin, “Living in Dual Shadows.”
63 National Immigrant Justice Center, Human Rights First,
and Penn State Law, “The One-Year Asylum Deadline
and the BIA: No Protection, No Process” (2010), available at http://www.immigrantjustice.org/sites/immigrantjustice.org/files/1YD%20report%20FULL%20
2010%2010%2020%20FINAL.pdf.
64 Elise Foley, “House Democrats Introduce Immigration
Bill With Little Chance of a Vote,” HuffPost Politics, October 2, 2013, available at http://www.huffingtonpost.
com/2013/10/02/house-democrats-immigration-bill_n_4030024.html.
23 Center for American Progress | Dignity Denied
65 Strengthen and Fortify Enforcement Act, H.R. 2278, 113
Cong. 1 sess. (2013).
66 Ann Garcia, “Who Would the Safe Act Endanger?”, Center for American Progress, October 28, 2013, available
at http://www.americanprogress.org/issues/immigration/news/2013/10/28/77978/who-would-the-safe-actendanger/.
67 Adam Liptak, “Blocking Parts of Arizona Law,
Justices Allow Its Centerpiece,” The New York Times,
June 25, 2012, available at http://www.nytimes.
com/2012/06/26/us/supreme-court-rejects-part-ofarizona-immigration-law.html?ref=arizonaimmigrationl
awsb1070&_r=0.
68 Zadvydas v. Davis 533 U.S. 678 (2001).
69 Christopher Stone, “Supervised release as an alternative
to detention in removal proceedings: some promising
results of a demonstration project,” Georgetown Immigration Law Journal 14 (3) (2000): 673–687.
70 Detention Watch Network, “Alternatives to Detention
Fact Sheet,” available at http://www.detentionwatchnetwork.org/sites/detentionwatchnetwork.org/files/
background%20fact%20sheets.pdf (last accessed
November 2013).
71 Ibid.
72 Jaya Ramji-Nogales, Andrew Schoenholtz, and Philip G.
Schrag, “Refugee Roulette: Disparities in Asylum Adjudication,” Stanford Law Review 60 (2) (2007): 295–412.
73 Ian Urbina and Catherine Rentz, “Immigrant Detainees
and the Right To Counsel,” The New York Times,
March 30, 2013, available at http://www.nytimes.
com/2013/03/31/sunday-review/immigrant-detaineesand-the-right-to-counsel.html?pagewanted=all&_r=0;
American Bar Association, “Resolution on the Right
to Counsel for Immigrants” (2006), available at http://
www.civilrighttocounsel.org/pdfs/ABA%20Resolution%20on%20Counsel%20in%20Immigration%20
Proceedings.pdf.
74 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 208, 104th Cong., 2d sess.
(September 30, 1996).
75 National Prison Rape Elimination Commission, “National Prison Rape Elimination Commission Report.”
76 National Center for Transgender Equality and others,
“Protecting Lesbian, Gay, Bisexual, Transgender, Intersex, and Gender Nonconforming People from Sexual
Abuse and Harassment in Immigration Detention”
(2013), available at http://immigrationequality.org/wpcontent/uploads/2013/03/DHS-PREA-LGBT-commentsfinal.pdf.
24 Center for American Progress | Dignity Denied
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